Tribunal overturns confiscation of foreign electronics due to lack of proof

The Appellate Tribunal CEGAT, Kolkata upheld the decision to set aside the confiscation of cell phones and radios of foreign origin, as the Revenue failed to prove they were smuggled items under the Customs Act. The Tribunal rejected the Revenue's appeal.

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Issues: Whether, in respect of non-notified goods of foreign origin, the burden of proving that the goods were smuggled and liable to confiscation lay on the Revenue under Section 123 of the Customs Act, 1962.

Analysis: The goods were treated as non-notified items, and the appellate authority had held that, once Section 123 did not apply, the burden shifted to the department to establish unlawful importation and smuggled character. The record disclosed no evidence produced by the Revenue to discharge that burden. Mere absence of documents for lawful acquisition, or a statement indicating purchase from unknown persons, was held insufficient to prove smuggling.

Conclusion: The burden to prove that the non-notified goods were smuggled remained on the Revenue, and that burden was not discharged. The confiscation was unsustainable, and the Revenue's appeal failed.

Final Conclusion: The order setting aside confiscation was upheld and the Revenue's challenge was rejected.

Ratio Decidendi: For non-notified goods, the department must affirmatively prove smuggling before confiscation can be sustained; suspicion or absence of purchase documents is not proof.

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